What does Major League Baseball commissioner Bud Selig have in common with Egyptian generalissimo Abdel-fatah al-Sissi? Nothing ― except for the inclination to declare a state of exception and throw the rule book out the window.
Reports that Selig might summarily suspend the New York Yankees’ Alex Rodriguez by invoking his “right to take action against a player to preserve the integrity of the game” are important to no one except baseball fans, of course. The general’s decision to oust elected President Mohammed Morsi affects the future of democracy in Egypt, the Middle East and the world. Yet taken together, these examples ― one minor and one major ― can teach us a fundamental lesson about the importance of procedures and the nature of power itself.
In baseball, as in constitutional government, rules and procedures structure everything, which is why Chief Justice John Roberts could claim, when nominated for the U.S. Supreme Court, that he would be just an umpire calling balls and strikes. When a crisis emerges, however, the temptation to ignore the rules for the good of the game ― or the country ― can be overwhelming.
Under the rules of democratic governance, Morsi was entitled to remain in office until he was voted out by the public. A-Rod is similarly entitled to appeal any judgment that he used performance-enhancing drugs or interfered with the league’s Biogenesis investigation ― a right guaranteed by the players’ collective-bargaining agreement, MLB rules and common fairness. (Disclosure: As a lifetime Boston Red Sox fan, I have no love for any Yankee, past, present or future.) You don’t have to believe that Morsi was competent or that A-Rod is innocent to understand this principle. It comes from the very idea of a procedure: We set things up in a certain way and try to make sure that the rules are fair and fairly applied.
What theory allows a leader to sidestep the procedures, to announce that the circumstances are so dire that the rules must go? The answer comes from the most important political theorist you’ve never heard of, the German constitutional thinker Carl Schmitt. Writing in 1922, Schmitt explained how power works in a single sentence: “Sovereign is he who decides on the exception.” What he meant, in essence, was that true sovereignty needn’t lie with the people, even in a democracy. The real power belongs to whoever has the capacity to throw out the rules and make his commands stick. If people listen when the leader ignores procedure, then he is really in charge ― the people aren’t.
You may already have guessed why Schmitt isn’t a household name: In 1933, a certain dictator-in-the-making found Schmitt’s theory wonderfully useful in seizing absolute power after his election. Schmitt himself joined the Nazi Party in one of history’s more shameful displays of an intellectual blithely sucking up to the power that seemed to like his ideas.
Let me be so extremely clear that no one can possibly misunderstand me: Al-Sissi isn’t Hitler. And God knows Selig is dealing with a game, not the fate of nations. I am not comparing either of them to Nazis. What I’m saying is that Schmitt’s brilliant and disturbing insight brings home why it is so dangerous to suspend the rules of the game.
Rules and procedures ― no matter how dull, plodding, slow and inadequate ― are what stand between collective government and the absolute rule of the individual. If we are following those rules, we are diffusing power away from the central decision maker and to the people who claim the right to choose that leader. No rules, no constitutional democracy ― it’s as simple as that.
It doesn’t even matter that the rules could perhaps be read to allow the leader to throw them over, as al-Sissi and Selig could plausibly claim. The Weimar constitution allowed for exceptions. So does the U.S. Constitution, which allows for the emergency suspension of habeas corpus in cases of war or rebellion ― a power controversially invoked by President Abraham Lincoln during the Civil War. What matters is who makes the exception, not how it is justified. If the decision maker can act without being constrained by the rules, then democracy is over.
It also doesn’t matter if some members of the public ― such as the demonstrators who wanted Morsi out ― support the dictator who declares the exception. In a constitutional democracy, popularity is no excuse for circumventing the rules. Indeed, the reason we have rules is to reduce the temptation for the popular leader to consolidate power and thus take it away from the people.
The lesson, then, can be stated simply: The rules and procedures are what keep us free. Break them, and you may be able to get away with it. But you will have betrayed and destroyed democracy. And once a single person becomes the sovereign in place of the people, he can be hard to remove.
By Noah Feldman
Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman. ― Ed.
(Bloomberg)
